ARE WE OUR BROTHER’S KEEPER? IF NOT WHO IS?
From an article published in PEW Trust, April 07, 2017
A dearth of beds at state psychiatric hospitals in many parts of the country and shortages of mental health resources mean that mentally ill people who commit minor crimes often end up languishing in jails, which are poorly equipped to handle their illnesses.
It’s a difficult problem that, without intervention, creates a grim cyclical pattern: Untreated mentally ill people get carted off to jail, where their illnesses go unaddressed, which increases the odds that they will commit crimes after their release.
But cities, counties, and states across the U.S. are attempting to break that pattern, using law enforcement and criminal justice tools to direct those with mental illness toward treatment services that could help them control behaviors that got them into trouble.
The interventions come in many forms. There are now more than 300 mental health courts, in which defendants deemed mentally ill are directed to mental health treatment services rather than incarceration. Some jurisdictions, such as Maryland, allow for mental health competency exams to occur in community settings so that defendants don’t have long waits for space at state hospitals, where the exams usually take place. And in Florida, Miami-Dade County gives some mentally ill defendants suspected of misdemeanors or nonviolent felonies the option of treatment rather than jail or prison time.
More jurisdictions are turning to what are known as crisis intervention teams — police officers who are trained to de-escalate situations involving people who show signs of mental illness and take them directly to mental health treatment centers rather than jail.
The results have been encouraging, with fewer arrests and fewer repeat offenders. The Miami-Dade County program, for example, cut nearly in half the chances that a mentally ill defendant would return to jail in the year after discharge compared to mentally ill defendants who were not in the program.
As a result of this and related programs in Miami-Dade County, the Florida Legislature last year passed a law that will make it easier for courts around the state to direct mentally ill defendants to treatment programs.
“It’s all about creating a plan that enables them to exist in the community without being a threat to public safety, to others and themselves,” said Cindy Schwartz, director of jail diversion for the 11th Judicial District’s Criminal Mental Health Project in Miami-Dade County.
Some legal scholars worry the programs involve law enforcement and the judiciary in public health roles that are outside their expertise. And mental health advocacy groups, such as Mental Health America, caution that just because criminal justice agencies have these tools available, they shouldn’t have a license to sweep more people with mental illnesses into the criminal justice system to pressure them into treatment.
But some judges and police groups, as well as mental health advocates, say that police, prosecutors and judges are left with no choice but to address mental illness because of characteristics of the population that gets caught up in the criminal justice system.
“That’s the reality of where we are,” said David Cloud, senior program associate in substance use and mental health for the Vera Institute, a nonprofit working on justice reform issues. “Someone has to take responsibility.”
The dimensions of the problem are sobering. The Treatment Advocacy Center (TAC), a nonprofit advocating on behalf of those with severe mental illness, estimates that in 2016, nearly 400,000 inmates in U.S. jails and prisons had a mental illness. Jails, in the minds of many in law enforcement and mental health advocates, have become modern-day asylums.
“If you took drugs and alcohol and mental illness out of my jail, my jail would be empty,” said Sheriff Mark Wasylyshyn of Wood County, Ohio, who echoes the frustration of many who run city and county jails.
Because state psychiatric hospitals are usually filled with patients who have been committed, or sent by the courts for mental competency evaluations or “restoration” services to establish competency, many of the mentally ill sit in jails for a long time.
According to a 2015 TAC survey, 78 percent of state hospitals surveyed reported that they had waitlists for forensic psychiatric beds, causing defendants to languish in jails for weeks and sometimes months. Often, advocates say, they are in jails waiting for a bed longer than they would be if they had been sentenced for a crime.
“The situation boils down to we have too many people sitting in jails because we don’t have enough beds to help them,” said John Snook, TAC’s executive director.
It’s not simply that jails are ill-equipped to treat the mentally ill. Studies, including one by the Urban Institute, a public policy research organization, found that the mentally ill remain in jail longer than others, return to jail more frequently, and cost more to incarcerate. Jails are also chaotic, noisy and dangerous, attributes more likely to exacerbate symptoms than soothe them.
Treatment, advocates say, would not only help individuals caught up in the cycle of arrest-jail-release-arrest but relieve pressure on jails and state hospitals.
Crisis intervention teams, the most widespread model to divert mentally ill offenders, began in 1989 in Memphis. Selected police officers receive up to 40 hours of training in mental illness and ways to de-escalate crises involving those exhibiting signs of mental disorder. Instead of arresting people who commit low-level crimes — such as disorderly conduct, public urination or trespassing — and taking them to jail, officers can take them to community mental health facilities.
According to the University of Memphis, which runs a training center on crisis intervention teams, CIT programs now operate in 2,632 jurisdictions across 46 states and Washington, D.C.
In Ohio, nearly 9,600 police officers have received CIT training since 2000, according to Jamie Carmichael, spokeswoman for the Ohio Department of Mental Health and Addiction Services. They operate in 86 of 88 counties, she said.
Christopher Nicastro, the department’s chief of criminal justice programs, said Ohio’s decision to expand Medicaid health coverage for low-income people under the Affordable Care Act has meant that many of the offenders encountered by crisis intervention teams are eligible for treatment under Medicaid. And that makes treatment more likely.
By avoiding arrest, Ohio’s CIT program keeps more of the mentally ill out of jail and relieves the need for mental health competency evaluations required for trial. That, in turn, relieves the pressure on Ohio’s state psychiatric hospitals, creating more space for others.
In Texas, police officers can bring mentally ill people to one of more than 30 stand-alone emergency mental health clinics the state began funding about a decade ago.
What makes the clinics financially viable is the use of telemedicine, said Avrim Fishkind, a psychiatrist who helped found the Texas network of mental health centers. Today, well over 90 percent of police encounters with those believed to be having a mental crisis can be resolved without an arrest, he said.
Even in places with crisis intervention teams, offenders with mental illness often end up in jail.
In South Florida, Judge Steven Leifman of Florida’s 11th Judicial Circuit has worked for nearly two decades on devising ways to steer mentally ill defendants into treatment rather than incarceration. But the population he is dealing with is large.
Miami-Dade County has the largest percentage of residents with serious mental illness (9.1 percent) of any urban area in the country, according to Leifman’s Criminal Mental Health Project. And fewer than 13 percent of them receive treatment. The result is that police often are the first to respond to mental crises, and jails are filled with mentally ill arrestees.
Tim Coffey, the coordinator of the court’s mental health project, said that of the 64,000 bookings into city or county jails last year, 11,000 involved people with severe mental illnesses. Their stays are up to eight times longer than other inmates, and their costs are seven times higher, the project said.
Crisis intervention teams have helped drop the average daily census of the jails, which Coffey said has fallen from 6,560 in 2001, when the program began, to 3,718 last year.
Getting to that point has taken time. Leifman began working in the early 2000s to get treatment for the mentally ill in jail for misdemeanors. Now, a defendant who is deemed by a physician at the jail to be mentally ill can agree to be sent to a public or private mental health facility for treatment, often as an outpatient. The court also has gotten support from the state, about $1.5 million a year, to provide the defendants with other services, such as housing and transportation.
And the court assists defendants with enrolling in Social Security for disability benefits, which makes them eligible for Medicaid. (Florida did not expand Medicaid, so many in this population could only be accepted if they were identified as disabled.)
If they follow their treatment regimen, said Schwartz, the diversion director, their charges are dropped. The program makes about 300 referrals a year, her office said.
In 2008, Miami-Dade launched a similar program for those charged with nonviolent second- or third-degree felonies, such as burglary and drug possession.
Instead of awaiting trial in jail, participants are sent to a 16-bed residential treatment program at Jackson Behavioral Health Hospital. After being stabilized, defendants remain at the facility undergoing treatment until their court date. Participants are usually released after their court appearance and monitored over the course of a year to make sure they are taking medications and participating in treatment. They also receive help with finding housing, transportation, and jobs.
According to the 11th Circuit Court, those participating in the felony program achieve mental competency an average of 52 days sooner and cost 32 percent less than those who go to a state hospital.
But despite the successes, some legal analysts remain cautious of the approach.
Larry Fitch, a law professor at the University of Maryland who has advised the American Bar Association and the National Association of State Mental Health Program Directors on issues of criminal justice and mental illness, said the criminal justice system isn’t suited to playing a mental health role.
The answer, he said, is a well-resourced and well-functioning community mental health system. That, he conceded, appears to be a long way off.
- Our prisons and jails are filled with people with mental illnesses. There are at least 8,000 people with mental illnesses in prisons operated by the Illinois Department of Corrections. There are at lest 3,000 people with mental illness in Illinois’ ninety nine county jails, including approximately 2,000 in the Cook County Jail.
- It is difficult, if not impossible, to provide decent and human mental health services in prisons and jails. Prisons and jails lack the resources to attract and retain sufficient qualified professionals to address the mental health needs of inmates. Correctional staff are often not trained to work with persons with serious mental illnesses.
- Prisons and jails are frequently violent, overcrowded, understaffed and chaotic places. Persons with mental illnesses are frequently victimized by other inmates. Moreover, when untreated or inappropriately treated for their illnesses, they frequently violate prison or jail rules and sometimes commit additional crimes. These behaviors commonly lead to discipline and lengthened terms of imprisonment.
- Prisons and jails in Illinois have frequently been sued for failing to provide adequate mental health services. For example, the Illinois Department of Corrections is facing a class action making this claim and seeking dramatic (and expensive) improvements in mental health services. Cook County Jail is signatory to two consent decrees requiring comprehensive mental health services. Prison and jails across the state have been sued successfully for failure to provide mental health services to individual inmates and for failing to prevent suicides by persons with mental illnesses.
- Every year thousands of persons with serious mental illnesses are released from prisons and jails without having been successfully treated for their mental illnesses. Whether or not their illnesses have been appropriately treated in these institutions, most will not be linked to appropriate treatment when released.
- At least 250.000 Illinoians have schizophrenia or bipolar disorder and millions of others have other serious mental illnesses. Thousands have returned from military service in Iraq or Afghanistan with post-traumatic stress disorder.
- As Illinois reduced the capacity of its state-operated mental hospitals from 33,000 in 1955 to 1,200 in 2015, it failed to fund or provide adequate community mental health services for it citizens. Private hospitals have also reduced their inpatient capacity.
- Private insurance has typically failed to provide adequate coverage for mental illnesses. Only recently have the federal and state governments adopted “parity” laws, which require that mental illnesses be afforded the same level of coverage as other health conditions. Unfortunately, enforcement of these laws remains problematic.
- Many persons with mental illnesses who end up in the criminal justice system had not received mental health services prior to their arrest because they did not have health insurance, were not eligible for or had not enrolled in Medicaid and other public funding for mental health services is inadequate.
- Medicaid in Illinois does not provide for minimally adequate mental health services due to inadequate payment rates for providers and the failure to cover many necessary, evidence-based services.
- Serious, untreated mental illnesses frequently result in a downward economic spiral due to loss of employment and loss of family support.
- Create and expand effective mental health diversion programs including:
- Police Crisis Intervention Team (CIT) programs
- Crisis intervention programs where law enforcement can bring for treatment and other services persons witth mental illnesses and substance use problems who have been charged with low-level crimes
- Bond-court diversion programs
- Problem solving courts including drug courts, mental health courts and veterans courts
- Enhanced mental health services for persons mental illnesses eligible for probation.
- Take advantage of Illinois’ decision to expand Medicaid coverage under the Affordable Care Act to enroll every eligible person in Medicaid. Illinois should specifically focus on insuring that persons with mental illnesses leaving prisons and jails are enrolled in Medicaid.
- Prison and jails must coordinate with the Departments of Human Services (DHS) and Healthcare and Family Services (DHFS) to create appropriate linkage to community services for every person with a mental illness leaving a prison or jail. As the Medicaid program moves to managed care, DHFS must contract with managed care entities to insure that they promptly arrange mental health services for persons leaving prisons and jails.
- DHFS must take advantage of Federal Medicaid waiver programs to fund evidence-based community mental health services.
- The Illinois Department of Insurance should take aggressive steps to enforce Federal and State parity laws so that persons with private insurance have access to mental health services.
- Promptly and carefully screen for mental illnesses everyone entering a jail or prison.
- Provide adequate and humane mental health services in every prison and jail.
- Prisons and jails must coordinate with DHS and DHFS to insure that persons being effectively treated on psychotropic medications are not forced to switch medications when entering or leaving the criminal justice system.
This is a copy of a recent article on prisons today:
In 2015, the National Lawyers Guild adopted a resolution calling for the dismantling and abolition of all prisons. As an organization, we recognized mass incarceration in all of its iterations—policing, violence, incarceration, forced labor, privatization and capitalism—as a crisis that we must resist in all of our work. Sharlyn Grace, then NLG Co-executive Vice President explained: “Calling for the abolition of this profit-motivated system that is designed to maintain racial and economic inequality while relying on individualized punishment as a primary response to social problems falls directly within our mission of protecting human rights over property interests.”
In the resolution, we commit to supporting grassroots organizing efforts, policy initiatives, and litigation that promotes or moves toward abolition, including the rights and organizing of prisoners, the de-funding and closure of prisons, redirection of prison and policing budgets into social services and re-entry support, legalization of drug use and sex work, release of prisoners serving life without parole and other inhumane sentences, decreased use of solitary confinement, and efforts to prevent construction of new prisons.
Over the past two years, we deepened this commitment by centering our jailhouse lawyer members, providing legal support to the National Prison Strike, organizing actions and events at law schools to call for an end to mass incarceration, and building with allied organizations such as Critical Resistance and Black and Pink to consider and address the inherent contradictions involved in working within the legal system towards a world without prisons. During this time, the problem of mass incarceration in the United States became a mainstream conversation often directly tied to its history of slavery and colonization. Racist policing came to the fore with the Black Lives Matter Movement and President Obama finally called for an end to the use of private prisons. However, mass incarceration continues to be a critical point of struggle in which the NLG works to intervene in various ways.
One aspect of the NLG’s mass incarceration work on a national scale is our connection with “jailhouse lawyers”, which refers to prisoners who learn to advocate for themselves and assist other prisoners in legal matters relating to their sentence, to their conditions in prison, or to civil matters of a legal nature. This is evident through a few different facets. One is our Prison Law Project, which sends out Jailhouse Lawyer Handbooks to prisoners upon request. Another is the work of our Mass Incarceration Committee, which has a group of volunteers who respond to all letters we receive from jailhouse lawyer members ranging from basic legal research to providing case law that is otherwise inaccessible on the inside. We maintain a website and include the column “Beyond Bars” in Guild Notes to highlight the voices of our jailhouse lawyer members, through letters they send describing what it’s like to do legal work behind bars and all the obstacles incurred in the process. Finally, for the past two years, we have supported recently released jailhouse lawyer members through our Haywood Burns Fellowship Program.
We know that with every victory we have achieved over the decades, backlash can be expected. In 2017, we are facing an entirely different political landscape. Donald Trump was elected on a racist “law and order” campaign platform and immediately ordered a Muslim ban on entry to the United States, mandatory deportation for immigrants charged with minor quality of life offenses, the reinstatement of stop and frisk policing, and three executive orders protecting police officers. One of Attorney General Jeff Sessions’ first actions was repealing the Department of Justice’s private prisons memo, as well as threatening to rollback protections for trans and gender non-conforming prisoners.
These are certainly scary times to organize and advocate, yet simultaneously we have seen the power of our communities to come together to resist this administration through a multitude of different strategies. From the mass mobilizations to shut down airports and demand the release of folks being held after the immigration ban to the wave of prisoner strikes and riots to cities committing to continue to provide safety and support to trans and gender non-conforming students in their school districts, we can see that people are ready to fight and resist this administration at every turn.
While we may feel fear, grief, anger and despair at the current conditions we are facing on our political landscape, now is the time for us to practice everyday abolition strategies as we continue to challenge the current fascist regime. This political moment is moving multiple movements into more conversation and strategic alignment, as we all face direct attack. The NLG has experienced a huge increase in donations and members since Trump was elected, demonstrating that there is still a broader commitment to social justice and finding solutions to ending mass incarceration.
In a report from the Brennan Center for Justice, December, 2016
This report finds the following: • Of the 1.46 million state and federal prisoners, an estimated 39 percent (approximately 576,000 people) are incarcerated with little public safety rationale. They could be more appropriately sentenced to an alternative to prison or a shorter prison stay, with limited impact on public safety. If these prisoners were released, it would result in cost savings of nearly $20 billion per year, and almost $200 billion over 10 years. This sum is enough to employ 270,000 new police officers, 360,000 probation officers, or 327,000 school teachers. It is greater than the annual budgets of the United States Departments of Commerce and Labor combined.33 • Alternatives to prison are likely more effective sentences for an estimated 364,000 lower-level offenders — about 25 percent of the current prison population. Research shows that prison does little to rehabilitate and can increase recidivism in such cases. Treatment, community 8 | Brennan Center for Justice service, or probation are more effective. For example, of the nearly 66,000 prisoners whose most severe crime is drug possession, the average sentence is over one year; these offenders would be better sentenced to treatment or other alternatives.34 • An estimated 212,000 prisoners (14 percent of the total population) have already served sufficiently long prison terms and could likely be released within the next year with little risk to public safety. These prisoners are serving time for the more serious crimes that make up 58 percent of today’s prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary, and serious drug trafficking. • Approximately 79 percent of today’s prisoners suffer from either drug addiction or mental illness, and 40 percent suffer from both.35 Alternative interventions such as treatment could be more effective sanctions for many of these individuals.